“55.Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary: "1. A defendant's lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by her evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D's guilt. 2. The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D's lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …" 56. In Re H-C (Children)[2016] EWCA Civ 136 @ [99], McFarlane LJ, as he then was said: "99. In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt." 57. To be clear, and as I indicate above, a 'Lucas direction' will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe A or B on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in [40]. Conversely, an established propensity to honesty will not always equate with the witness's reliability of recall on a particular issue. 58. That a tribunal's Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis, or itself determines, that such a direction is called for, to seek Counsel's submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.”
“41. The court must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another. 42. In the present case, the mother was giving evidence about an incident which had lasted only a few seconds seven years before, in circumstances where her recollection was taking place in the aftermath of unimaginably traumatic events. Those features alone would highlight the need for this critical evidence to be assessed in its proper place, alongside contemporaneous documentary evidence, and any evidence upon which undoubted, or probable, reliance could be placed.”
“62. Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child. 63. Such findings where made in respect of a carer, often the mother, are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children’s best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries. 64. Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming ‘a bolt on’ to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, “nearly all parents will be imperfect in some way or another”
“72. I repeat my exhortation for courts and Local Authorities to approach allegations of ‘failure to protect’ with assiduous care and to keep to the forefront of their collective minds that this is a threshold finding that may have important consequences for subsequent assessments and decisions. 73. Unhappily, the courts will inevitably have before them numerous cases where there has undoubtedly been a failure to protect and there will be, as a consequence, complex welfare issues to consider. There is, however, a danger that significant welfare issues, which need to be teased out and analysed by assessment, are inappropriately elevated to findings of failure to protect capable of satisfying the section 31 criteria. 74. It should not be thought that that the absence of a finding of failure to protect against a non-perpetrating parent creates some sort of a presumption or starting point that the child/children in question can or should be returned to the care of the non-perpetrating parent. At the welfare stage, the court’s absolute focus (subject to the Convention rights of the parents) is in relation to the welfare interests of the child or children.”
“The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts.”
“I was talking to Z before the end of the school today and he told me about a scratch he had on his neck. He had already gone to the office during playtime where it was marked as an accidental scratch caused by his brother. I assumed it was by his younger brother U. However, he told me that he sleeps in the same bed with his 20 or so year old brother who intentionally pinched/scratched him because Z tried to push him away because it was too hot in bed. He cried and apparently his mother sent the older brother to read the [holy book].”
“Follow up conversation with Z this morning. Z disclosed to a TA on Friday 4/3/22…. I spoke with Z this morning and asked him again about the scratch. He repeated the same story an said that his older brother Y in Year 7 at S school did it. He said that he couldn’t remember when but that his brother also slaps him nearly every day. He said this happens about the use of the computer but also in bed as there is no space in the bed. He said that he has no marks or bruises on his body but the slapping happens every day. He then said that his older brother [touched his private parts]. He didn’t say when this last happened or how often this happens. He said that his Mum knew about the scratching and slapping but that he hadn’t told her about the penis. HH phoned MASH. MASH form sent. II aware of full disclosure. [Teacher] aware of sexual abuse disclosure. [Colleague] to be made aware that there has been a sexual abuse disclosure. We were advised over the phone not to inform the parents and a SW will come to school to talk to Z today.”
“When asked about to describe the bedroom Z said that he sleeps with his brother on the top end Y sleeps on the bottom end. “He pinches here (points to his neck on the left side), did it last Friday night. I was going to sleep to Sunday. He always farts on my face, kicks me on my leg it hurts. He is stronger than me. He has no visible bruises or marks. Z said that was everything. GG – Assistant head teacher was present in the room she was asked to read the referral (conversation that she previously had with Z). She read few lines of the referral and Z said that he remembered having the conversation with her and then begin to say: “He kicks my legs, slaps, and kicks. He always sees my private”
“Z’s detailed account of this sexual assault suggests that it is likely that he has experienced significant harm as a result of sexual abuse.”
‘He stated that he was the oldest sibling and when I challenged this and said that I was under the impression he had an older sibling, he said “That is irrelevant as he is not here.”.’
‘Z reported that he has no big brother and lived 8 years in [V Council area]. When asked about who A was, Z replied “he is my brother, he is 22-year-old, mum said not to say that he was a big brother”. Z said that he does not know where the big brother lives.’
“He was a bundle of emotions but did make some comments relating to the situation. - “I am so unhappy.” - “I did not do what my brother said I did.” - “Will I ever see my parents again?” - “What will happen to me?””
“What, then, is the proper approach to these difficulties? Again, it must be a most careful adherence to rules of evidence; application of due weight to unchallenged evidence and the greatest care taken before assuming that any submission adverse to Y’s case is incapable of a satisfactory answer or is capable [of] accruing to it any significant weight.”
‘[I] Then explored a little further concerning the allegation against him, asking Y to share his views about his brother’s disclosure, Y responded “nothing happened, I did not do anything to Z”’
“He is always scratching himself.”
‘ “…He opens my bum, and he sees it, he puts his pinkie feet.” When asked where the brother puts the pinkie feet Z replied “I use it for my poo, it feels so dizzy that happen on Friday”.’
‘He said his brother puts hydromol cream on his own penis and on Z’s face.’, also at the police initial questioning at the school and during the ABE interview. During the initial questioning CC noted as follows: ‘My brother put his cream on his willy and puts on my face, wipes the cream on my face… Z explained that the name of the cream that his brother uses is Hyddromol cream, there is one tub on his mother’s bedroom and another one on their bedroom’ (sic). During the ABE interview he was asked about this incident and named the cream (‘Hydroma’) and its use as ‘for when you shower… and you towelled and cream yourself’
‘Y caught Z watching Y after he had finished bathing. He went into the bedroom to apply body lotion, I think Hydromol, and was getting dressed. The door was not entirely closed and Z was watching him undress. When Z saw him, obviously he was annoyed and had first shouted at him, but Z continued to watch him. I understand that Y then pushed the door. Y applied cream on Z’s face when he peeped again. Y was annoyed with Z for peeping on him. Z did not report that Y had him, he had complained in a very angry manner that Y had put his hand on a dark part of Y’s body, then put cream on Z’s face.’
“589. The departmental advice What to do if you’re worried a child is being abused (HM Government, March 2015) (replacing previous guidance published in 2006) states that before referring to children’s services or the police an attempt should be made to establish the basic facts. The Guidance makes clear to readers at [25] that “it will be the role of social workers and the police to investigate cases and make a judgement on whether there should be a statutory intervention and/or a criminal investigation”
“The signs of child abuse might not always be obvious and a child might not tell anyone what is happening to them. You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information”
“If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.”
“In circumstances where there is a wealth of guidance for professionals and the police, it is not appropriate for this court to reinvent the wheel or burden those tasked with dealing with this fraught area with further detailed instructions. [...] That said, it does appear that the following “lessons” bear repeating as the foundation of rigorous forensic investigation by professionals and police of allegations of child sexual abuse. I venture to suggest that whenever a referral is received in a case that raises allegations of sexual abuse the social worker or police officer allocated to the case should, before they do anything else, pause and remind themselves of the following checklist of ten cardinal principles: i)The investigation of child sexual abuse is a demanding, complex and sensitive task and should be undertaken by those who have received the requisite training.ii) Very great professional care is required when dealing with allegations of child sexual abuse, both in the initial phases and at the ABE interview stage.iii) Whatever the nature of the child’s presentation, and whether the response is immediate, prompt or deferred, the response of professionals and the police must be planned. Children’s best interests are rarely served by precipitate action.iv) The primary principles governing, and the procedures for the investigation and assessment of alleged child sexual abuse are those set out in Achieving Best Evidence 2011 and Working Together 2018 and must be followed in all cases.v) Any investigation into child sexual abuse that focuses attention on the statements of the child runs the risk of producing a false result if what the child says is unreliable, or if the child’s primary caretaker is unreliable. vi) All interactions with a child who is making or appears to be making an allegation of child sexual abuse have the potential to influence that child’s memory.vii) Accounts given by children are susceptible to influence as the result of bias or preconceived ideas on the part of professionals and police. Those speaking to children who have made allegations of sexual abuse must keep an open mind with respect to the allegations made and must guard against the development of bias or preconceived ideas. A professional who loses their objectivity ceases, by definition, to act professionally.viii) Questioning the child should ordinarily be left to a formal ABE interview. If any initial questioning is necessary, it should be limited to eliciting a brief account of what is alleged to have taken place; a more detailed account should not be pursued at that stage.ix) Anything the child says must be recorded in a note that must detail (a) the timing, setting and people present, (b) what the child says in the words used by the child (avoiding summaries of the account in the interests of neatness or comprehensibility and avoiding recordings of the adult’s interpretation of what the child said), (c) a full note of the actual questions asked (if any) and (d) what was said by anybody else present.x) Overall, the proper methodology is one that combines listening to the child and taking them seriously with an open-minded approach that takes account of both sides of the story, is open to new evidence that disconfirms original ideas, that reasons dispassionately, that demands that claims be backed by evidence and that deduces and infers conclusions only from available facts.”
“591. The ABE Guidance goes on to state at [2.6] under the heading ‘Initial Contact with Victims and Witnesses’ that a person engaged in early discussion with an alleged victim or witness following an allegation should, as far as possible, (a) listen, (b) not stop a free recall of events and (c) where it is necessary to ask questions, ask open-ended or specific closed questions rather than forced-choice, leading or multiple questions and ask no more questions than are necessary to take immediate action. Within this context, and in the context of an examination of the ABE guidance, in Re S (A Child)[2013] EWCA Civ 1254 at [16] the Court of Appeal held that, with respect to initial contact with alleged victims, discussions about the facts in issue in respect of an allegation, as distinct from whether and what allegation is being made and against whom, should be rare and should not be a standard practice. 592. When social workers are speaking to children who have made allegations they must be very careful to consider the purpose of the exchange and whether it is being conducted with a view to taking proceedings to protect the child or for separate therapeutic purposes where the restrictions upon prompting would not apply but the interview would not be for the purposes of court proceedings (Re D (Child Abuse: Interviews)[1998] 2 FLR 10 ).”
‘1700 hours – The conversation with Z begins with Z talking about what he likes. Z reported that he is in year 3, likes the school and his favourite lesson is maths, Science, and geography. Z likes timetables and rockstar. After that the professionals introduced themselves and explained about their roles. The lead professional was DC B. Z reported that he saw a police badge before in computer games. When asked what happens at home, Z replied that he forgets things. Police office said that it was ok and asked what he remembers.’
“I have never heard the level of detail and the use of body language and pointing to different parts of his body …he was telling us a story …it was different from other cases I had seen”
‘Z saying I know the cream and then he got up and said I can spell it for you and said if you go on the internet, you can find the cream and he said there was a tub in his bedroom and another tub in his parents’ bedroom and said that was the cream they used for eczema’
‘For him to recall and saying I can spell it for you without being asked. I thought how can a child? It was like he was telling us a story. So it was different from other cases’
“587. Within this context and having regard to the matters set out in the foregoing paragraphs, the proper approach is likely to be one that combines listening to the child and taking them seriously whilst taking care not to prejudge the issue, an approach of neutrality but not indifference, coupled with the rigorous application of the guidance to which I now turn.“ (my emphasis). “856. The ABE Guidance is advisory rather than a legally enforceable code. However, significant departures from the good practice advocated in it will likely result in reduced (or in extreme cases no) weight being attached to the interview by the courts. Within this context guidance from the Children Act Advisory Committee concerning the Memorandum of Good Practice, which preceded the ABE Guidelines, made clear that: “Any joint child abuse interview conducted by police and social services must follow the memorandum of good practice. Otherwise, not only is the resulting interview of no forensic value, but it may impede or contaminate any further assessment of the child ordered by the court.”
"52. …the Guidance makes it clear that the interviewer and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we were left with a clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and in particular to make LR repeat on camera what she had said to her mother. That, emphatically, is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it. 53. Against this background, the judge's assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not in our judgment stand up to analysis….it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed, in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required and the child's interview must be assessed in that context."
‘So if he’s laying there, show me what he did to come and pinch you.’
‘The judicial enquiry is yet further complicated by the most unusual fact that, in this case, the two protagonists share a bed. In most sexual abuse cases, there is no natural or explicable reason for the alleged victim and perpetrator to be so close to each other routinely. In this case, that proximity was routine. The potential for misunderstanding or accidental/innocent bodily contact was huge: a. Each child is, necessarily, in an intimate and proximate position towards the other, as they share a bed; b. One child can mistake a kick to their body by the other brother as being intentional when it was not: it might be an accident or might have occurred during sleep yet they might reasonably or unreasonably respond with a kick, push or scratch; c. Z is known to find it hard to settle, is easily distracted and, at school is known to be prone to hit out: any such movements might prompt a justified or excessive response from his brother; d. In the ordinary use of the bed, Z might well have clambered over his brother to take the swiftest route out and this could have happened at any time when they shared the bed, for example if he needed to visit the bathroom or fetch a glass of water.’
‘a. The bedroom door was left open at night. The mother checked on the children frequently at night. This account was not challenged by the local authority. b. Z would be asleep before Y went to bed. c. There were three adults living in the home yet no one heard anything untoward. d. Z does not complain of any pain or report making any noise. e. The mother bathed Z that weekend and saw no marks. f. Y was at the place of worship all day on Saturday yet Z made no complaints to his mother about the alleged conduct on Friday night. The mother confirmed that the boys would feel able to speak to her about their private parts, such as if they felt itchy.’
“264. The four relevant conditions that must be satisfied before a lie is capable of amounting to corroboration are set out by Lord Lane CJ in R v Lucas as follows: "To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness." 265. Where the court is satisfied that a lie is capable of amounting to corroboration of an allegation having regard to the four conditions set out in R v Lucas, in determining whether the allegation is proved, the court must weigh that lie against any evidence that points away from the allegation being made out (H v City and Council of Swansea and Others[2011] EWCA Civ 195 ).”
“270. Within the foregoing context, with respect to the legal principles applicable to the highly complex fact-finding exercise concerning allegations of sexual abuse in which this court is engaged, in the recent decision of Re A (Children)[2018] EWCA Civ 1718 , the Court of Appeal once again emphasised the overarching importance, when determining whether or not the case has been proved to the requisite standard, of the court standing back from the case to consider the whole picture and ask itself the ultimate question of whether that which is alleged is more likely than not to be true.”
‘M believes Z wants everything for himself, he wants computer, room everything; M and F say Z is talking lies, he tells lies at home all the time; M says Z has told her that he was angry and went to school to tell professionals about Y, “Z is crying and asks for Y; he lies but he is missing his brother”.’
‘No I do not like my foster placement’